by adjudicators, particularly when cultural differences or linguistic subtleties might cause misinterpretation, are now very important from the commencement of representation. Attorneys who neglect this responsibility may leave their clients vulnerable to surprise or adverse inference during adjudication. Additionally, the attorney’ s role in collecting and analyzing such material must always be guided by the principle of protecting client privacy, directed by the duty of confidentiality.
Perhaps most delicate is the boundary established by Rule 4.1, which prohibits lawyers from making false statements of material fact or law to third persons, and by extension from facilitating client misrepresentation. While it is appropriate to guide a client in understanding the implications of their online presence, counsel must refrain from encouraging the deletion of truthful, if inconvenient, information or, even worse, creating a new online“ persona” just for the purpose of sterilizing the social media profile. The ethical line is drawn between prudent preparation and coaching those shades into dishonesty. Moreover, advising clients to adjust privacy settings to restrict access to the profile may appear prudent at a glance; however, recent experiences of the practitioners indicate that“ private” profiles may lead USCIS and DoS to draw an adverse inference and significantly delay adjudication. The essence of ethical practice in this area is to prepare clients thoroughly while scrupulously avoiding actions that would distort the truth.
Counsel must refrain from encouraging the deletion of truthful, if inconvenient, information or, even worse, creating a new online“ persona” just for the purpose of sterilizing the social media profile
BEST PRACTICES FOR IMMIGRATION COUNSEL Given these ethical parameters, several best practices emerge for EB-5 practitioners navigating the social media dimension of their clients’ cases. A social media review should not exist apart from other aspects of EB-5 case preparation; instead, it should be integrated into the broader analysis of source-of-funds documentation.
A prudent approach begins with a social media audit conducted at the initial stage of representation. By examining publicly available profiles, attorneys can identify potential issues before they become obstacles during adjudication. When potentially problematic material arises, the counsel must contextualize it, explaining in evidentiary submissions the cultural, linguistic, or situational nuances that might otherwise lead to misinterpretation. This proactive contextualization allows adjudicators to understand the material in its proper light rather than through assumptions that may be unfounded.
Attorneys should also advise clients about the importance of maintaining consistent, professional online profiles. This practice ensures that clients are aware of the public nature of their digital presence and can avoid inadvertent contradictions between their filings and their online activity. A lifestyle portrayed online that is inconsistent with the financial history submitted in support of an investment can undermine the credibility of the entire petition. By aligning the two, counsel ensures that the narrative presented to USCIS is coherent and defensible.
Finally, attorneys must prepare clients for the possibility that social media content may be raised during visa or adjustment of status interviews. A well-prepared client who understands how to explain a particular post, photograph, or comment in context is less likely to be unsettled or contradicted by questioning.
A BALANCING ACT For EB-5 practitioners, the task of providing advocacy consistent with digital risk management is particularly complex, as large financial stakes and intricate documentation requirements converge with the scrutiny of a client’ s personal and public identity. Careful, ethical lawyering makes the decisive difference at the intersection of the economic objectives of the EB-5 program and national security imperatives. In an era where one post can determine the outcome of a multi-milliondollar case, the role of counsel is more critical than ever..
NATALIA POLUKHTIN
Natalia Polukhtin is the founder and principal of Global Practice, specializing in investment-immigrant and non-immigrant visa categories. She has expertise in documenting sources of funds from CIS countries and has published articles on integrating cryptocurrency into the EB-5 process.
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